State v Chand - Summing Up [2015] FJHC 450; HAC055.2014LAB (17 June 2015)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 055 OF 2014LAB

STATE

V

UMESH CHAND

Counsels: Ms. A. Vavadakua for State
Mr. A. Kohli for Accused

Hearings: 15 and 16 June, 2015
Summing Up: 17 June, 2015

SUMMING UP

1. ROLE OF JUDGE AND ASSESSORS
   

1. Madam and Gentlemen Assessors, it is my duty to sum up to you. In doing so, I will direct you on matters of law, which you must accept and act upon. On matters of fact however, what evidence to accept and what evidence to reject, these are matters entirely for you to decide for yourselves. So if I express my opinion on the facts of the case, or if I appear to do so, then it is entirely a matter for you whether you accept what I say or form your own opinions. You are the judges of fact.

2. State and Defence Counsels have made submissions to you, about how you should find the facts of this case. That is in accordance with their duties as State and Defence Counsels, in this case. Their submissions were designed to assist you, as the judges of fact. However, you are not bound by what they said. It is you who are the representatives of the community at this trial, and it is you who must decide what happened in this case, and which version of the evidence is reliable.

3. You will not be asked to give reasons for your opinions, but merely your opinions themselves and need not be unanimous. Your opinions are not binding on me, but I will give them the greatest weight, when I deliver my judgment.

2. THE BURDEN AND STANDARD OF PROOF
   

4. As a matter of law, the onus or burden of proof rest on the prosecution throughout the trial, and it never shifts to the accused. There is no obligation on the accused to prove his innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he is proved guilty.

5. The standard of proof in a criminal trial, is one of proof beyond reasonable doubt. This means that you must be satisfied, so that you are sure of the accused's guilt, before you can express an opinion that he is guilty. If you have any reasonable doubt about his guilt, then you must express an opinion, that he is not guilty.

6. Your decision must be based exclusively upon the evidence which you have heard in this court, and upon nothing else. You must disregard anything you might have heard about this case outside of this courtroom. You must decide the facts without prejudice or sympathy, to either the accused or the victim. Your duty is to find the facts based on the evidence, and to apply the law to those facts, without fear, favour or ill will.

4. THE MAIN ISSUE
   

8. In this case, as assessors and judges of fact, each of you will have to answer the following question:




(i) Did the accused, on 17 June 2014, at Labasa in the Northern Division, rape the complainant?


5. THE OFFENCE AND IT'S ELEMENTS
   

9. The accused was charged with the offence of "rape" contrary to section 207(1) and 207(2)(a) of the Crimes Decree 2009. For the accused to be found guilty of "rape", the prosecution must prove beyond reasonable doubt, the following elements:




(i) the accused had sexual intercourse with the complainant, that is, his penis penetrated the complainant's vagina;




(ii) without the complainant's consent; and




(iii) he knew the complainant was not consenting to sex, at the time.




10. In law, the slightest penetration of the complainant's vagina by the accused's penis, is sufficient to constitute "sexual intercourse", and it's irrelevant whether or not the accused ejaculated.




11. Consent is to "agree freely and voluntarily and out of her own free will". If consent was obtained by force, threat, intimidation or fear of bodily harm to herself, that "consent" is deemed to be no consent. The consent must be freely and voluntarily given by the complainant. If the consent was induced by fear, it is no consent at all.




12. It must also be established by the prosecution beyond reasonable doubt that the accused knew the complainant was not consenting to sex, at the time. You will have to look at the parties' conduct, at the time, and the surrounding circumstances, to decide this issue.



6. THE PROSECUTION'S CASE
   

13. The prosecution's case were as follows. On 17 June 2014, the accused was 51 years old. The female complainant (PW1) was 34 years old. Between 10.30am and 11.00am, the two booked a room at Grand Eastern Hotel. It was Room 101. The complainant was allegedly suffering from some menstrual problem. At times, she bled excessively from her vagina. She has been to various doctors in Sigatoka to resolve her problem, but it was to no avail. Someone recommended the accused to her as a "pundit" and/or a witch doctor. The two had been on phone contact since February 2014, and the accused promised to take her to a temple to pray for her.




14. On 17 June 2014, the two entered Room 101 at Grand Eastern Hotel. The complainant said she sat on a sofa. According to the prosecution, the accused was standing at the closed door. He told PW1 to take off her clothes, for him to start the healing process. PW1 removed her coat and dress. She was left with her panty, tights and bra. The accused took off his clothes. He was naked. The accused moved towards PW1 and pushed her onto the bed. He then removed PW1's undergarments. According to the prosecution, he laid ontop of her, and inserted his penis into her vagina. He then had sex with her for about 10 minutes. Despite her struggles to free herself, it was to no avail. According to the prosecution, PW1 did not give her consent for sex to the accused, at the time, and he knew very well that she was not consenting to sex with him.




15. The complainant managed to report the matter to the police a few minutes later. An investigation was carried out. The accused was caution interviewed by police. He appeared in the Labasa Magistrate Court on 27 June 2014, charged with raping the complainant. Because of the above, the prosecution is asking you, as assessors and judges of fact, to find the accused guilty as charged. That was the case for the prosecution.



7. THE ACCUSED'S CASE
   

16. On 15 June 2015, the first day of the trial, the information was put to the accused, in the presence of his counsel. He pleaded not guilty to the charge. In other words, he denied the allegation against him. When a prima facie case was found against him, at the end of the prosecution's case, wherein he was put to his defence, he choose to give sworn evidence and called no witness, in his defence. That was his right.




17. The accused's case was very simple. He admitted he went into Room 101 at Grand Eastern Hotel, with the complainant, at the material time. He denied telling the complainant to take off her clothes, and denied ever inserting his penis into the complainant's vagina, at the time. He tendered 5 photos, taken by police on 17 June 2014, at about 3.15pm or thereabout, as Defence Exhibit No. 1. Photos 2, 3 and 4 pictured the bed, on which the alleged rape occurred. The bed appeared undisturbed.




18. Because of the above, the accused is asking you, as assessors and judges of fact, to find him not guilty as charged. That was the case for the defence.



8. ANALYSIS OF THE EVIDENCE
   

19. The State's case against the accused stands or falls on whether or not you accept the complainant's (PW1) evidence. You have heard her give evidence on 15 June 2015, when she was examined-in-chief, cross-examined and re-examined. In relation to the three elements of rape as described in paragraphs 9, 10, 11 and 12 hereof, she said, the accused inserted his penis into her vagina without her consent, and he knew she was not consenting to sex, at the time, on 17 June 2014. The complainant said, the accused laid ontop of her, and had sexual intercourse with her for about 10 minutes, on the hotel bed. Photos of the bed were taken in photos 2, 3 and 4 of Defence Exhibit No. 1. The photos were taken by police on the day of the incident.




20. In law, the complainant's evidence as to the alleged rape, does not need to be corroborated or supported by independent evidence. If you accept her verbal evidence alone, without relying on other pieces of evidence, that in itself is sufficient to ground a possible conviction. But for you to accept her evidence as credible, you will have to make a finding that she is a credible witness. And in making your finding on whether or not she's a credible witness, you are entitled to consider the evidence in its totality.




21. In this case, the accused gave sworn evidence.He said, he did not insert his penis into the complainant's vagina, on 17 June 2014. He denied the first element of rape, as described in paragraph 9 (i) hereof. He submitted photos 2, 3 and 4 of Defence Exhibit No. 1, as proof thereof. The hotel bed shown is the crime scene in this case. Ten minutes of sexual intercourse allegedly occurred on the bed. Yet the bed looked like it had not been slept on. The bed sheet and the pillows appeared not to have been used.




22. When cross-examined by defence counsel, the complainant admitted she was medically examined at Labasa Hospital on 17 June 2014 at 2.10pm. She was medically examined by a government doctor, and she agreed he was a professional. She could not remember his name. She said, the doctor commented that her "vaginal walls looks normal, with no evidence of recent sexual intercourse". In her evidence-in-chief, PW1 said, the accused ejaculated into her vagina. However, the doctor found no evidence of sperm being present in her vagina.




23. When cross-examined, the complainant said, she was bleeding slightly in the vagina, on 17 June 2014. After 10 minutes of sexual intercourse, she left the room without looking at the bed sheets. The photos in Defence Exhibit No., 1 showed that there were no blood stains on the bed sheets to support what the complainant said.




24. The complainant's and the accused's version of events on the alleged rape were at odds with one another. Which version of events to accept would depend on which of the two witnesses you find credible. You have watched them give evidence. Who do you think was forthright? Who do you think was evasive? Who do you think was telling the truth? If you find the complainant a credible witness, then you must find the accused guilty as charged. If you find her not to be a credible witness, or after considering the whole evidence you are not sure of the accused's guilt, then you must find him not guilty as charged. It is a matter entirely for you.
.
I. SUMMARY




25. Remember, the burden to prove the accused's guilt beyond reasonable doubt lies on the prosecution throughout the trial, and it never shifts to the accused, at any stage of the trial. The accused is not required to prove his innocence, or prove anything at all. In fact, he is presumed innocent until proven guilty beyond reasonable doubt. If you accept the prosecution's version of events, and you are satisfied beyond reasonable doubt so that you are sure of the accused's guilt, you must find him guilty as charged. If you do not accept the prosecution's version of events, and you are not satisfied beyond reasonable doubt so that you are not sure of the accused's guilt, you must find him not guilty as charged.




26. Your possible opinions are as follows:




(i) Rape : Accused : Guilty or Not Guilty.




27. You may now retire to deliberate on the case, and once you've reached your decisions, you may inform our clerks, so that we could reconvene, to receive the same.




SalesiTemo
JUDGE




Solicitor for the State: Office of the Director of Public Prosecution, Labasa
Solicitor for the Accused: Kohli& Singh, Barrister & Solicitor, Labasa